Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR218094
Jones, P.J.
Claude Jerald Green appeals from a judgment entered after a jury convicted him of selling a controlled substance. (Health & Saf. Code, § 11352, subd. (a).) He contends his conviction must be reversed because (1) the court erred when it allowed the prosecutor to reopen her case and present additional evidence, and (2) the court erred when it denied his request for new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. We reject these arguments and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 14, 2004, near 11:00 p.m., Detective Fabio Rodriguez of the Vallejo Police Department was working undercover as part of a drug suppression unit. The goal of the unit was to buy narcotics, but not arrest the seller immediately, so the undercover operation could continue. Rodriguez noticed a gray Mazda parked at a convenience store in an area that had been the subject of many complaints of drug dealing. He parked his car near the Mazda, made eye contact with the driver, appellant, and asked if he had any “roca.” Appellant motioned for Rodriguez to approach. He did so and told appellant he had $10. A passenger in the Mazda opened the car’s glove box. Appellant reached inside, removed a large black marker, unscrewed the bottom to reveal a hidden compartment, and shook out about 10 rocks of suspected cocaine. Appellant gave Rodriguez one of the rocks in exchange for the money. Rodriguez then returned to his car, left the area, and broadcast a description of appellant to other officers with whom he was working.
Detective Theodore Postolaki of the Vallejo Police Department was working with Detective Rodriguez that night. After Rodriguez left the convenience store, he met with Postolaki and gave him the rock of cocaine that he had purchased. Later at the police station, Postolaki returned the rock to Rodriguez, who tested it and then forwarded it to a crime lab for further testing.
A forensic toxicologist performed additional tests that indicated the rock was cocaine and that it weighed .08 grams.
Based on these facts, an information was filed charging appellant with the offense we have set forth above. As is relevant here, the information also alleged appellant had one prior strike within the meaning of the three strikes law. (Pen. Code, § 1170.12, subd. (c).)
All further section references will be to the Penal Code.
The case was tried to a jury that found appellant guilty. In a court trial that followed, the court found the strike allegation to be true.
Subsequently, the court sentenced appellant to the mid-term of four years, doubled to eight years pursuant to the strike finding.
II. DISCUSSION
A. Whether the Court Erred When It Allowed the Prosecutor to Reopen Her Case.
Detective Rodriguez testified on direct and redirect that after he purchased the rock of cocaine from appellant, he met with Detective Postolaki, the case agent, and gave Postolaki control of the rock of cocaine. The case agent would have placed the rock into a zip-lock envelope, obtained a case number from dispatch, and placed the number on the envelope. Later, at the police station, Postolaki returned the cocaine to Rodriguez. Rodriguez then conducted a preliminary or “presumptive” test on the substance.
After the prosecutor had presented her final witness, and just prior to resting her case, she asked the court to admit the envelope and the cocaine into evidence. Defense counsel objected arguing there was a “chain of custody problem.” He maintained there was no evidence “linking the substance that supposedly was purchased by Detective Rodriguez and then later handed to Detective Postolaki and later handed back to Detective Rodriguez.”
The trial court overruled the objection stating that the “chain of custody issues go to the weight to be given to the evidence by the jury and not the admissibility.” The prosecutor then rested her case.
The chain of custody issue arose again later in the trial. The defense subpoenaed Detective Postolaki to testify about an ambiguity in the police reports he prepared, but the detective had left town to attend a seminar. The trial court ruled the defense was entitled to question Postolaki about the reports and it ordered him to appear in court the following Friday at 9:30 a.m.
The prosecutor decided that since Detective Postolaki would be appearing to testify about the police reports, she would clear-up any possible problems that may have remained about the chain of custody issue. As the prosecutor explained, “if he’s going to be here on Friday, assuming that I am not allowed to get into chain of custody questions on cross-examination because it goes beyond the scope of [defense counsel’s] direct, I would intend to call him in rebuttal. And I told the Court earlier that I had no rebuttal evidence but that would be something that I would intend to clear up.”
Defense counsel objected arguing that the prosecutor should not be allowed to examine Detective Postolaki about chain of custody issues because she had rested her case.
The following Friday, Detective Postolaki appeared in court. Defense counsel objected again arguing Postolaki should not be allowed to testify about chain of custody issues because the prosecutor had rested her case. The defense then examined Postolaki and carefully avoided asking him about the chain of custody issue. At the conclusion of Postolaki’s testimony, the defense rested.
The court then allowed the prosecutor to call Detective Postolaki and to examine him about the chain of custody issue. He provided testimony that tracked the testimony Detective Rodriguez had provided earlier. “I took [the rock of cocaine] into my custody, generated a case number, filled out paperwork for it, and basically kept it in my charge until I returned to our office. At the time that I returned to our office after the operation was completed, Detective Rodriguez and myself processed the evidence, meaning . . . it was weighed. It was given a presumptive chemical test where it tested positive for cocaine. It was sealed in an evidence envelope. My initials were put on it. And I believe Detective Rodriguez initialed it also, placed it in a Contra Costa County Crime Lab envelope, sealed into evidence with evidence tape. I took it down to the Vallejo Police Department evidence section, locked into a locked locker, and then it was out of my control.”
The defense declined to present any further testimony in rebuttal.
Appellant now contends the trial court erred when it allowed the prosecutor to reopen her case and present testimony from Detective Postolaki on the chain of custody issue.
Section 1093 provides that, after the prosecutor has offered evidence in support of the charge and defendant has had an opportunity to offer evidence in support of the defense, the “parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit[s] them to offer evidence upon their original case.” (§ 1093, subd. (d).) “Changes in the order of proof called for by section 1093 can be made within the sound discretion of the trial court.” (People v. Carter (1957) 48 Cal.2d 737, 754.) “[T]he trial court has broad discretion to order a case reopened and allow the introduction of additional evidence. [Citations.] No error results from granting a request to reopen in the absence of a showing of abuse. [Citation.] Moreover, the appellate court decisions upholding an order allowing the prosecution to reopen its case are legion [even after the defense has rested]. [Citations.]” (People v. Rodriguez (1984) 152 Cal.App.3d 289, 294-295.) “ ‘Factors to be considered in reviewing the exercise of [the trial court’s] discretion include the stage the proceedings had reached when the motion was made, the diligence shown by the moving party in discovering the new evidence, the prospect that the jury would accord it undue emphasis, and the significance of the evidence.’ [Citation.]” (Id. at p. 295, italics omitted.)
Here, we need not decide whether Detective Postolaki’s testimony properly can be characterized as rebuttal, because it is clear the trial court did not abuse its discretion when it permitted the prosecutor to reopen her case. While Postolaki’s testimony came at the end of the trial, the defense was provided the opportunity to present rebuttal evidence, the jurors had not been instructed, and the parties had not yet argued. There was no lack of diligence. The prosecutor did present chain of custody evidence through Detective Rodriguez. It is apparent she wanted to present additional testimony from Detective Postolaki on that issue only because the defense had challenged the evidence she did present. Postolaki’s testimony tracked and corroborated the testimony that Rodriguez had provided earlier, so it is unlikely the jurors would have accorded the former’s testimony undue emphasis. Chain of custody evidence is, of course, significant in every case. (See, e.g., People v. Catlin (2001) 26 Cal.4th 81, 134.) We conclude the court did not abuse its discretion when it allowed the prosecutor to reopen her case.
In arguing the trial court erred, appellant relies primarily on language from People v. Rodriguez (1943) 58 Cal.App.2d 415. In Rodriguez, the defendant had confessed to the charged crime, but the prosecutor did not present the confession as part of his case in chief, instead holding it back for rebuttal. The Rodriguez court ruled that procedure was unacceptable, “When the case of the People is closed and the defense is in, the remainder of the People’s case is limited to evidence in rebuttal of that produced by the defense and should be so limited by the court, except where a proper showing is made for reopening the case in chief for the receipt of further evidence. The People have no right to withhold a material part of their evidence which could as well be used in their case in chief, for the sole purpose of using it in rebuttal.” (Id. at p. 419.)
Relying on Rodriguez, appellant argues the prosecutor did not make a showing that was adequate to justify opening her case. We simply disagree. Appellant concedes that the prosecutor’s justification for reopening can be determined from a review of the record, and here, the record demonstrated clearly why the prosecutor wanted to reopen her case. She had presented the chain of custody evidence through Detective Rodriguez, but it had been challenged. The prosecutor wanted to supplement that evidence to clear up any possible ambiguity that may have existed on that issue with testimony from Detective Postolaki. The trial court did not abuse its discretion when it granted the prosecutor that opportunity.
B. Whether the Court Erred When It Denied Appellant’s Marsden Motion.
Appellant was represented by Sean Swartz, a deputy conflict public defender. Appellant and Swartz had a good working relationship and Swartz even performed unrelated legal work for appellant.
One day, about three months prior to trial, a dispute arose. Swartz was visiting appellant when appellant saw a document that indicated Swartz had made an informal discovery request to the prosecutor. Appellant did not know about the request, and he was angry that Swartz had made it without telling him. He decided to file a Marsden motion.
The trial court conducted an in camera hearing and determined that appellant’s only complaint was that Swartz had not told him what he was doing. The court then asked Swartz for his response. He characterized the dispute somewhat differently. He said appellant wanted him to ask permission before filing any motions. Swartz said he told appellant that he, as the attorney, was authorized to make those kind of decisions and that he would not ask for permission before filing an informal discovery request.
Appellant denied telling Swartz that he needed to ask permission before filing a motion. He said he simply wanted to know what Swartz was doing.
The court asked Swartz whether there had been an irremediable breakdown of the relationship between himself and appellant. Swartz said that may have occurred because appellant was so angry during their exchange: “as I was attempting to explain to him the law as it pertains to the role of the attorney versus the role of the defendant, he didn’t allow me to speak and continued to speak over me and was extremely angry and wouldn’t let me continue to speak. And if the relationship continues on that level, there’s no way I can adequately represent him and provide effective assistance of counsel.”
The court declined to grant appellant’s motion explaining its decision as follows: “The Court at this time will make a finding that there has not been incompetence demonstrated on the part of Mr. Swartz. I don’t find there’s been an irremediable breakdown in the attorney/client relationship. I’m prepared to deny the Marsden motion without prejudice. [¶] That means that for now Mr. Swartz will remain you attorney. If things continue to cause you concern, you will have the right to bring a subsequent Marsden motion and we’ll address the issue at that time. Something like that does not strike this Court to sufficiently justify the granting of a Marsden motion.”
Appellant did not file another Marsden motion and the case proceeded to a jury trial about three months later.
Appellant now contends the trial court erred when it denied his request for a new attorney.
When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. (People v. Memro (1995) 11 Cal.4th 786, 857.) A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (Ibid.) On appeal, we review the trial court’s decision for an abuse of discretion. (Ibid.) Denial of a motion for substitution of attorneys is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendant’s right to assistance of counsel. (People v. Horton (1995) 11 Cal.4th 1068, 1102.)
We find no abuse here. The trial court carefully inquired into appellant’s reasons for requesting substitution of counsel, and the reason offered by appellant, a failure to communicate about a single informal discovery request, was relatively minor. It is true that Swartz described the dispute somewhat differently. Nevertheless, even his explanation, a misunderstanding over the relative responsibilities of an attorney and client, was not particularly serious. The trial court reasonably could conclude that this was not the type of dispute that required the appointment of new counsel. Furthermore, while Swartz conceded that if appellant remained angry and unable to communicate, it would be difficult to represent him effectively, the fact that appellant did not file any further Marsden motions in the months that followed strongly indicates appellant and Swartz were able to work out any minor differences they had. Indeed, reviewing the record as a whole, it appears Swartz represented appellant aggressively and effectively throughout the proceedings. We conclude the trial court did not abuse its discretion when it denied appellant’s Marsden motion.
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Needham, J.